YOUR GUIDE TO THE O-1B VISA
Introduction: What is the O1B Visa?
The O-1B visa is for foreign nationals (aliens) who have demonstrated extraordinary ability in the arts or extraordinary achievement in the motion picture or television industry. At the outset it is important to note the distinction in the language between the two standards: extraordinary ability for the arts and extraordinary achievement for motion picture/TV.
In the creative fields, extraordinary ability refers to distinction. To show distinction, the applicant must show that he or she has a much greater level of skill and recognition than the majority of individuals in their respective fields, indicating that they can be described as a leading or prominent individual in the arts.
For those in the motion picture or television industry, the standard is higher and the applicant should be prepared to show that he/she has reached a level of acclaim substantially above that of his/her peers. The person must be described as outstanding, notable or a leader in their field.
Additionally, all O-1B holders must be coming temporarily to the United States to continue work in their area of extraordinary ability. The petition is to be approved for the duration of the event, in which the alien will participate, for a maximum of three years. One-year extensions are permitted thereafter with no maximum cumulative duration.
For O-1B purposes, the definition of arts, and thus an artist, is broad. Any field of creative activity or endeavor qualifies, such as, but not limited to, fine arts, visual arts, culinary arts, and performing arts. Below are some additional examples
- Art and Entertainment Industry Professionals: Creative Directors, Architects, Publicists, Writers, Designers, Developers, Sound Engineers, Producers, Directors, Actors, Actresses, Singers, Animators, 3d Artists, Projection Mapping Artists, Theatre Industry Professionals, Coaches, etc.
- Fine Arts Professionals: Painters, Commercial Artists, Special Effects Artist, Mural Artist, Tattoo Artist, Photographers, Writers, Poets, Authors, Art Directors, Chefs, Culinary Industry Professionals, etc.
- Beauty and Fashion Professionals: Makeup Artist, Groomer, Hairstylist, Fashion Designer, Clothing Designer, Costume Designer Textile Specialists, Eyelash Artists, Stylists, Consultants, etc.
- Music Industry Professionals: Musicians, Sound Engineers, Disc Jockeys, Singers, Choreographers, Maestros, Teachers, Producers, Directors, Songwriters, etc.
Proving Extraordinary Ability
The U.S. Citizenship and Immigration Services (USCIS) regulation provides two basis (Basis A and B, described below) for showing evidence of extraordinary abilities.
Basis A: Receipt of a Major, National Or International Recognized Award
The alien may establish qualification through evidence of nomination or receipt of a major, national or international recognized award such as an Academy Award, an Emmy, a Grammy, or a Director’s Guild Award. In an absence of an award, the individual can provide documents needed in Basis B.
Basis B: Documentation Showing Extraordinary Ability
To prove extraordinary ability in the field the individual must show at least three of the following:
- Having been or will be performing a lead or starring role in productions or events which have a distinguished reputation (as evidenced by critical reviews, advertisements, press releases, publications contracts, or endorsements);
- Critical reviews or other published material in a professional or major trade publication or in the major media by or about the alien which show that the alien has achieved national or international awards, recognition or achievements;
- Evidence of performance in a lead, starring or critical role for organizations or establishments with distinguished reputations;
- Evidence of a record of major commercial or critically acclaimed successes in the performing arts, as shown by box office receipts or record, cassette, compact disk, or video sales.
- Evidence of significant recognition for achievements form organizations, government agencies, or other recognized experts in the field;
- Evidence of having commanded a high salary or other significantly high remuneration for services in relation to others; and
- Other comparable evidence (This category is not available for those in the motion picture industry
Merely providing three sources of evidence does not establish that the foreign national possesses extraordinary ability. USCIS considers the quality of the evidence provided and not just whether the minimum amount of documentation has been submitted. Documentary evidence for an O1B visa petition may be in the form of:
- Affidavits, contracts, awards, or other documentation reflecting the nature of the foreign national’s achievement certified by an offer or responsible person employed where the work was performed.
- Affidavits that are written by present and/or former employers or recognized experts attesting to the reputation and extraordinary ability of the foreign national.
Photocopies of all documents are acceptable. All documents that are not in English must be accompanied by a certified translation.
O-1 Visa Filing Requirements
A petitioner filing for an O1 visa has to meet certain requirements. That individual must have extraordinary ability in certain fields, including art, education, science, business, or athletics, and have those abilities proved by either a nationally or internationally recognized award or a record of achievement as described in Basis B above.
To file an O-1 Visa, the following are required:
- Form 1-129
- Labor Consultation
- Copy of Beneficiary Passport
- Petitioner’s Cover Letter
- Supporting Documents
- Filing fees
1. Form 1-129
To apply for an O-1 visa, the petitioner must file Form I-129 Petition for Nonimmigrant Worker with the USCIS office. The petition must be filed within a year of the alien’s need of coming to the United States. In order to ensure that the visa is approved in the appropriate time period, one should file Form I-129 at least 45 days before the alien is to continue their work in the United States.
2. O-1 Visa Consultation Requirement:
- The applicant must provide a written advisory opinion from a peer group related to their field of expertise, or from an individual selected by the peer group that also has expertise in the field. The advisory opinion may also come from labor organizations.
- In the case of applicants with expertise in the television or film industry the consultation may come from a labor union or other organization with expertise in the respective field.
Waiving of the O-1 Consultation Requirement:
The consultation requirement may be waived if the petitioner can show that the suitable organization does not exist. In this case, the petition will be solely based on the evidence provided by the petitioner. In the case of the arts, the consultation requirement may be waived if the individual reenters the United States within 2 years of having a previous consultation. In this case, the petitioner should include a copy of the previous consultation along with a waiver request.
3. Copy of Beneficiary’s Passport:
The Beneficiary of the O-1 Visa is the person who will be entering the United States and benefiting from the O-1 Visa status by being able to work whether as an employee or independent contractor completing their itinerary of events.
4. Petitioner’s Cover Letter:
The Petitioner is the company or person who actually files the petition on the Beneficiary’s behalf. The Beneficiary and the Petitioner are not allowed to be the same person.
Petitioner’s cover letter, first addressing basis of any traditional expedite request and any special procedures desired. Otherwise, letter should specify the benefit sought, list filing contents, provide brief background on petitioner, summarize evidence showing beneficiary meets O-1B standards, explain nature of event and services to be rendered, outline any oral contract(s) or specify payment/expense terms of any written contract(s), reiterate classification period start and ending dates, and raise any issues regarding consultation waivers.
5. Supporting Documents
Evidence to that meets Substantive O-1B standards:
Copies of beneficiary’s résumé, discography/CD jackets, other biographical materials, reviews, articles, PR materials; full itinerary, supported by all written contracts, agreements, deal memos, letters of intent, etc.
a. O-1 Visa Contract Between the Petitioner and the Beneficiary (Person of Extraordinary Ability):
A written agreement or contract between the petitioner and the beneficiary must be provided with the I-129 Petition for Nonimmigrant Worker. An oral agreement may be included instead of a written agreement or contract. The oral agreement may consist of emails, written documents regarding the terms of the agreement, and other correspondences between the petitioner and beneficiary that verifies than an oral agreement was made between the parties. The terms and conditions must include what both parties agree to by entering into the agreement.
Itineraries should include the dates of services (including load-in and rehearsals), the name and address of the employer and the name and address of the venue. In many cases, the name and address of the employer and venue will be the same. For those petitions in which multiple venues are involved, and there is a significant gap between engagements, the itinerary should include information about the artist’s planned activities abroad during the gap. Also, for petitions involving multiple employers, a master itinerary compiling all activity during the proposed visa classification period is advised.
c. O-1 Visa Agent
An agent may be used in the O-1 visa process. The agent can be the employer, represent the petitioner/employer, represent the beneficiary (person of extraordinary ability) or both.
In the case where the person of extraordinary ability will be working in the United States under multiple employers, an agent can act as the petitioner and represent the other employers. In this case, the agent can file the I-129 Petitions for multiple employers.
d. Cases Where Agent is the Employer
If the agent is to act as the petitioner for the multiple employers, the agent must include the following information with the I-129 petitions:
- Documentation specifying the dates, events, and venues in which the person of extraordinary ability will participate in activities related to their field of expertise. The agent must include the names, addresses, and other information on the employers within the time periods specified, as well as the names and addresses of the venues in which the activities will be performed
- Contracts or Agreements between the beneficiary and the specified employers
- The agent must include an explanation of the terms and conditions of each of the provided contracts or agreements between the beneficiary and the actual employers
After the I-129 petition is approved, the person of extraordinary ability may travel to a U.S. embassy or Consulate in order to obtain their visa.
In addition, in O-1 cases where the agent acts as the employer, the agent must include the following information with the I-129 petition:
- An agreement between the agent and the person in question (beneficiary) indicating the wage that is being offered by the agent, as well as the terms and conditions of the agreement. A summary of the terms and conditions of an oral agreement or a written contract between the two parties will suffice
- In cases where the person in question will be performing their services in more than one location, the agent must provide a complete itinerary that contains the dates, locations, and venues in which the services are to be performed. If the agent is to act as the employer, an itinerary is absolutely necessary. It is best to include as much information as possible. The USCIS ultimately decides whether the itinerary requirement is met. The itinerary should conform to the industry standards.
Based upon the provided contract or agreement with the I-129 petition, the USCIS will ultimately determine whether the agent is acting as the employer or whether the agent is representing the employer, multiple employers, the beneficiary, or a combination thereof.
6. Filing Fees:
Always ascertain the appropriate filing fee by checking the U.S. Citizenship and Immigration Services (USCIS) fee charts, on the USCIS web site.
• The fee for the regular I-129 petition for a nonimmigrant worker is $460. THIS FEE WILL BE INCREASING TO $705 EFFECTIVE OCT 2, 2020.
• The fee for the I-907 premium processing form is $1440.
• The fee for the I-539 petition to extend/change status (used for spouses and dependents) is $370 + 85 biometric fee.
Payment should be made by a business or personal check, money order or cashier’s check, payable to “Department of Homeland Security.” Separate checks should be used for each fee paid. Do not pay fees in cash or stamps.
We Can Help with the O1B Visa Process
Qualifying for an O1-B Visa may seem overwhelming but oftentimes, eligibility is more straightforward than it seems based on the regulations.
It is a vital first step to properly establish eligibility. Your immigration attorney can assist you in determining whether you qualify and the appropriate evidence to gather to prove your extraordinary ability to the USCIS.
At Path Law Group, our goal is to make the legal process as personalized and smooth as possible. Our team has over a decade of experience, a stellar approval rate, and a long track record of favorable results for talented foreign nationals seeking visas to pursue their dream in the US.